By Rohey Jadama
Justice Simeon Ateh Abi of the Banjul High Court, in granting the defence’s request of “no case to answer ” in the multiple counts of ‘Homosexual Acts’ involving Momar Sowe and Alieu Sarr, acquitted and discharged the duo yesterday, Thursday, 30th July, 2015.
Messrs Sowe and Sarr were first arraigned at the Banjul Magistrates’ Court on 29thDecember, 2014 on ‘Aggravated Homosexuality’ charge and after which the case was later transferred to the high court.
At the high court, the duo was indicted on 10th February, 2015 with multiple counts of homosexual acts but the two denied any wrong doing.
The trial, which lasted for 7 and half months, was held in chambers and witnesses testified in closed door. The prosecution had argued that the witnesses are security personnel whose identity should be protected from the public.
Delivering the two rulings separately, Justice Abi said the prosecution called three witnesses in the trial of Sowe to prove their case and that at the closure of their case the defence filed a written brief of “no case to answer.”
The presiding judge said the defence argued that the court cannot rely on the prosecution witnesses to convict the accused person. In their reply, she said, the prosecution urged the court to overrule the ‘no case to answer’ submission and to order the accused to enter his defence.
“A no case to answer submission can be made where there is no evidence by the prosecution witnesses and where the evidence of the latter is discredited as a result of cross-examination. The question to be established is whether there is a prima facie case made against the accused person,” said Justice Abi.
He continued, “PW1 said he was part of the patrol team that went to the Senegambia area where they arrested the accused and took him to the National Intelligent Agency (NIA) pending further investigations. PW2 said he took the statement of the accused persons and recorded it in English and the independent witness signed it and it was tendered in court as an exhibit.”
Justice Abi said PW2 said that is all what he knows about the case. He said PW3 told the court that he led the investigation panel and that he invited the accused for questioning at the NIA and that is all that he knows about the case.
“It is clear that PW1 did not have any evidence stating that the accused did the act and all other prosecution witnesses did not state that the accused was involved in the act. The prosecution fails to prove its case beyond reasonable doubt and therefore the accused is acquitted and discharged,” ruled the trial judge.
In delivering his ruling in Sarr’s case, the presiding judge said the prosecution called only one witness and tendered 1 exhibit. He said at the close of the prosecution’s case the defence filed a written brief on behalf of Sarr.
“The evidence of the lone witness did not say anything that proves the essential ingredients of the case. The prosecution failed to prove its case beyond reasonable doubt. The accused is therefore acquitted and discharged,” ruled Justice Abi.
Lawyer Combeh Gaye-Coker and Lamin S. Camara represented the accused persons, while lawyer A.M Yusuf appeared for the state.